Editor’s Note: Corrigendum released on June 4, 2014 and appended to the original decision. The corrections were not integrated in the original reasons.

COURT FILE NO.: FS-12-00375231

DATE: 20140409

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

VICTORIA FIELDING

Gary Joseph and Elissa Gamus, for the Applicant

Applicant

• and -

JOHN CRAIG FIELDING

Ilana Zylberman and Michael Zalev, for the Respondent

Respondent

HEARD: February 20, 21, 24-28, March 3,4 and 6, 2014

MESBUR J

REASONS FOR JUDGMENT

Introduction:

[1] Victoria and Craig Fielding married in 1993 and lived together for just over seventeen years until their separation in late December 2010. They have three children, Katie, now seventeen, and twins, Sean and Natalie, age fourteen. The parties needed the court’s intervention to decide the final parenting arrangements for the children. After a three week trial before Mackinnon J about a year ago the mother was awarded custody of Natalie, and the father was awarded custody of Katie and Sean.

[2] The Fieldings also failed to resolve the financial issues arising out of the breakdown of their marriage. They required this second trial to resolve those issues. Although they were able to agree on many fundamental issues, such as Craig Fielding’s income for support purposes, the value of his medical practice, and the value of various assets both at valuation day and the date of marriage, other issues eluded agreement. These include (but are sadly not limited to), Vicki Fielding’s income for support purposes, whether she is entitled to spousal support, and if she is, in what amount, the children’s s.7 expenses and the parties’ proportionate shares of them, equalization, including whether it would be unconscionable to equalize the value of the parties net family properties and division of contents.

[3] This trial was devoted to deciding those issues.

Factual findings:

[4] Many of the facts in this case are not in dispute. The parties married in June of 1993 when Vicki was 36 and Craig was 35.[^1] It was Vicki’s second marriage, and Craig’s first. Both were practicing medical specialists at the time. Vicki was a urologist, and Craig a plastic surgeon. Vicki had qualified with her Fellowship in Urology in 1990 and became a board certified urologist with the American Board of Urology in 1993. Craig had already established his practice as a plastic surgeon about three years before Vicki attained her specialty designation.

[5] At the time of the marriage, Craig owned a large home on High Park Boulevard in Toronto’s west end. It was originally a four-plex when he bought it in partnership with his brother in law and his brother in law’s sisters. He later bought out their half interest so that by the time he and Vicki were together, he owned the whole property. When he and Vicki married, the house had been recently converted back to a single family home. Just before the marriage, Vicki moved into the house. It remained the parties’ family residence until they separated in late December of 2010. It is therefore the parties’ matrimonial home. Vicki and Natalie have lived in the home since then. The parties agree that Vicki and Natalie will have to move out of the house. They disagree as to whether that should occur in July or September of this year.

[6] Before the parties married, Vicki wrote Craig a cheque for $50,000. He applied the funds to reduce the mortgage on his house. Vicki characterizes the money as a loan. Craig says it could not have been a loan, since he dislikes debt, and would not have wanted to borrow money. He could not explain, however, why Vicki would simply have “gifted” him this money, particularly when he was the sole owner of the property. Vicki’s parents (who both testified) recalled Vicki telling them she had lent this money to Craig. They recommended she have written confirmation of the loan. She said she did not think it necessary since she had lent money to other physician-friends in the past and had been repaid without the necessity of any formal paperwork. I find it more likely than not Vicki lent the $50,000 to Craig before the date of the marriage. There is no question he did not repay it prior to the marriage. He has never repaid it. I accept the money advanced was a loan, and therefore conclude that Craig owed Vicki $50,000 at the date of the marriage, and she had an account receivable from him at that date in the same amount.

[7] Vicki also contributed to the house before the marriage by paying in large part for the kitchen cabinetry and Jacuzzi tub and taps that were all installed in the house during its renovation back to a single family home. Craig does not dispute that Vicki did so.

[8] Vicki had significant assets at the date of marriage, mostly deriving from the settlement she received on the breakdown of her first marriage. She owned her own home, a mortgage free property on Livingston Avenue in Toronto, and also had savings and investments. After the parties married, she contributed a further $200,000 or so to the High Park house. She says she did so because Craig either led her to believe she was on title to the house, or promised her that he would place her on title. He denies it. I accept Craig’s evidence on this point.

[9] Vicki is an intelligent professional woman. She had been married before, and had gone through the process of equalization of net family property in order to achieve a financial settlement with her first husband. She did so with the assistance of experienced matrimonial counsel. I find it hard to believe that she would have relied on verbal promises as she alleges. I am not satisfied Craig made any such promises to her.

[10] I am persuaded, however, that the parties embarked on their married life with the kind of economic partnership envisioned by the Family Law Act. They both contributed to the family. Craig's income was placed in a joint account, which was used for family purposes. The parties had joint investments, as well as individual investments. Although Vicki placed most of her earnings in her own bank account, she used those funds for family purposes as well, including contributing to paying down the mortgage on the matrimonial home. Both Vicki and Craig were committed to the idea of being debt free as early as possible. In fact, Vicki testified that she and Craig focused their financial plans on being able to retire in their early fifties.

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